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COURT OF APPEALS OF VIRGINIA

Present: Judges Annunziata, Bumgardner and Frank Argued at Salem, Virginia

TRACY ANTONIO DAVIS v. Record No. 2667-01-3 OPINION BY JUDGE ROSEMARIE ANNUNZIATA OCTOBER 15, 2002

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF MARTINSVILLE Charles M. Stone, Judge Joseph R. Winston, Special Appellate Counsel (Public Defender Commission, on briefs) for appellant. Kathleen B. Martin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

The trial court convicted Tracy Antonio Davis of possession of cocaine and possession of a firearm while in possession of cocaine. The court sentenced him to two years and five years in The court also found that Davis had It

prison respectively.

violated probation on a previously suspended sentence.

consequently revoked the six-year suspended sentence and re-suspended five years, giving him one year to serve. appeal, Davis contends that: On

(1) the evidence was insufficient

to prove that he possessed a firearm; and (2) the trial court erroneously revoked his previously suspended sentence because the court based the revocation on the conviction at issue on

appeal.

For the following reasons, we affirm the decision of

the trial court. Background On appeal, we view the evidence in the light most favorable to the Commonwealth, the party prevailing below, together with all reasonable inferences that may be drawn. Ortega v.

Commonwealth, 31 Va. App. 779, 786, 525 S.E.2d 623, 627 (2000) (citing Archer v. Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)) (additional citation omitted). On January 16,

2001, Officers Haynes, Coleman and Shumate of the Martinsville Police Department found Davis standing about three feet into a roadway, making it necessary for vehicles to swerve to avoid hitting him. Haynes told Davis to move from the roadway. He

told Davis he wanted to speak with him and planned to issue him a summons for a violation of Code

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